Facts of the case

In 1978, Curtis W. McGhee Jr. and Terry Harrington were convicted of murder and sentenced to life imprisonment by an Iowa state court. In 2002, Mr. McGhee's and Mr. Harrington's convictions were reversed because the prosecutor at their trial improperly withheld evidence of an alternative suspect. Subsequently, Mr. McGhee and Mr. Harrington filed civil claims in an Iowa federal court against Pottawattamie County, Iowa, and the prosecutors and officers involved in their prosecution. The defendants moved for summary judgment arguing that they were absolutely immune to civil prosecution. The district court found some defendants immune to certain claims, but denied immunity to other defendants on the other claims. The U.S. Court of Appeals for the Eighth Circuit granted interlocutory appeal on the question of whether the prosecutors were absolutely immune to civil prosecution.

The Eighth Circuit held that the prosecutors were not immune from claims that they violated Mr. McGhee's and Mr. Harrington's due process rights. The court reasoned that allegations that prosecutors obtained, manufactured, coerced, and fabricated evidence did not fall within "a distinctly prosecutorial function" and thus the prosecutors were not immune to the claims.

Question

May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants' substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?

Media for Pottawattamie County v. McGhee

John G. Roberts, Jr.:

We will hear argument first this morning in Case 08-1065, Pottawattamie County v. McGhee.

Mr. Sanders?

Stephen Sanders:

Mr. Chief Justice, and may it please the Court:

If a prosecutor's absolute immunity in judicial proceedings means anything, it means that a prosecutor may not be sued because a trial has ended in a conviction, Yet that is exactly what happened in this case.

Lower courts may not fashion exceptions to the immunity this -- this Court provided in Imbler by purporting to relocate a due process injury from the trial to an earlier investigation.

Anthony M. Kennedy:

Your -- your case here is a polite way of telling us we wasted our time in Buckley v. Fitzsimmons.

Stephen Sanders:

Your Honor--

Anthony M. Kennedy:

I mean, we were just spinning our wheels in that case?

Stephen Sanders:

--Your Honor, I don't believe so at all.

I think that this case presents exactly the question that Buckley reserved, and that is whether the fabrication of evidence by a prosecutor in and of itself, without regard to its use in some way, states a constitutional cause of action.

In this case, the use at trial, obviously, was absolutely immunized under Imbler and many of this other -- this Court's other precedents.

Despite respondent's best efforts to argue that there was some sort of due process violation caused by the fabrication itself, without regard to its use in some way, there simply is no support for that.

Ruth Bader Ginsburg:

Does that mean that, even if we were dealing with police officers who did what the prosecutors were alleged to have done at the investigation stage, no prosecutor, only police investigators, the fact that a trial and a conviction had occurred would mean that the police officers were not liable, either?

Stephen Sanders:

Your Honor, the fact that a trial and conviction had occurred could mean that the police officers were liable because of the due process violation at the trial, but in footnote 5 of Buckley, this Court was very clear and insisted that there is no disjunction between observing that a prosecutor, like a police officer, has only qualified immunity during the investigation while, at the same time, insisting that that does not affect the fact that the prosecutor has absolute--

Anthony M. Kennedy:

Take two cases.

One is Justice Ginsburg's case, a police officer fabricates the evidence, dupes the prosecuting attorney, or -- or doesn't fully disclose.

Case two, a prosecutor does the same thing and gives it to a fellow prosecutor.

Same -- should the analysis be precisely the same?

Stephen Sanders:

--Your Honor, it should be the same if the prosecutor in the second case that you hypothesize had nothing to do with the later prosecution.

In other words, if we could view that prosecutor simply as an ordinary citizen, simply as a complaining witness, as analogous to a police officer, So there's no argument in this case that simply, by virtue of being a prosecutor, a prosecutor has absolute immunity.

The courts below wrongfully abrogated trial immunity because trial is the only place where the injury of conviction and subsequent incarceration could have taken place.

Without reference to that specific injury, there is simply no other injury.

The--

Ruth Bader Ginsburg:

I'm not sure that I fully grasp your answer to my first question and to Justice Kennedy's, that is, yes or no, if everything that happened was alleged to have happened, but it was done by a police officer or a different prosecutor, nonetheless, the trial went on, the fabricated evidence was introduced, without any participation by the actual prosecutor in that fabrication, does a conviction -- does the -- do the police officers or the prosecutors that was not involved in the trial get absolute -- are they -- are they no more liable, not because they have absolute immunity, but because the trial and conviction at which the evidence was used overtakes what liability they might have had, absent the trial?

Is that your position?

Stephen Sanders:

--Your Honor, our position is -- I believe I would agree with you.

Our position is there is no liability for the initial fabrication.

As the United States explains in its brief, for a police officer to be held liable in those circumstances, it would need to be under some sort of malicious prosecution theory that would depend on the actual conviction and the use of the evidence at trial.

But the use of the evidence at trial is the injury itself, and that is exclusively a prosecutorial act, only a prosecutor could--